NYSBA to Gitmo Defense: We Don't Care
It sounded a little screwy to the defense lawyers, since it flies against every ethical precept of client confidentiality they had ever learned. Not that anyone was necessarily surprised about it, the government preferring to know more rather than less, but these are lawyers, even if they get a DoD paycheck and work on DoD computers.
The directive from the Convening Authority for the Office of Military Commissions to the Office of Chief Defense Counsel came in August, 2010. Figuring this might be a bit of a problem, and completely unwilling to sell their clients out, one of the lawyers who was admitted to practice in New York sought an ethics opinion from the New York State Bar Association on the demand. There was no doubt that they had a firm grasp of their ethical obligation to keep their clients' privileged communications confidential from the DoD, but it would prove enormously useful to have an official ethics opinion that said so, something to roll up and smack the guy from the Convening Authority in the face.
So on September 1, 2010, the request was sent to the New York State Bar Association for an ethics opinion. Bearing in mind that the DoD lawyers defending the Gitmo detainees have no independent ethical overseer, and look to their bar of admission for their ethical determinations. They are admitted in one state, situated in another and, as here, representing detainees at tribunals on a military base in Cuba. Cuba, unfortunately, offers little on the ethical proscription front, but then, it's law doesn't apply at Guantánamo anyway.
Notably, unlike some other states, New York ethical discipline is handled by a disciplinary committee under the auspices of each of the four Appellate Divisions of the state. The NYSBA is a voluntary association, rather than the controlling association for all lawyers, and one of the services it provides is ethics opinions upon request. The opinions aren't binding, but provide guidance and some persuasive authority. More importantly, by seeking and adhering to an NYSBA ethics opinion, one can demonstrate good faith reliance that will serve to vitiate any subsequent claim on deliberate unethical conduct.
So while it's not the final word, it matters and helps. And the DoD lawyers really needed some help staring down the government on behalf of their enemy combatant clients, who may be the only group in America without a Facebook fan page.
A few weeks later, a draft opinion arrives as a "head's up" on the final, setting forth in painful detail everything the DoD lawyers believed to be true, that they could not allow the government unfettered access to their clients' confidences. Duh. Just hold on a bit longer, brother, and the cavalry would arrive. The official opinion was on its way, with few it any changes, concluding that they may enjoy the government's largesse, but were still lawyers obliged to protect their clients. Not quite a stretch as ethics opinions go.
A few weeks went by. Then a few months. Silence. Tumbleweeds blew down Broadway in Manhattan, and the DoD lawyers began scratching their heads, wondering whether the government intercepted the opinion in the mail. No such luck. About March 14, 2011, the very official NYSBA opinion arrived.
We conclude that we lack jurisdiction to resolve your question because the New York Rules of Professional Conduct (the ''New York Rules") do not apply to the situation you describe. The jurisdiction of this committee is limited to questions arising under the New York Rules. The committee is charged with interpreting the New York Rules by answering questions of professional conduct that are governed by these rules. In your case, the threshold choice of law question is whether your conduct is governed by the confidentiality provision of the New York Rules (i.e., Rule 1.6), or by the confidentiality provision of some other jurisdiction — e.g., those of the state in which your office is physically located or the rules, if any, adopted by the military commissions before which you practice. Unless the confidentiality provision of the New York Rules applies to your work, this committee lacks jurisdiction to provide you an answer.
They lack "jurisdiction"? They have no jurisdiction. Over anyone. Anywhere. Ever. This is an NGO, a voluntary association where a bunch of guys who raise their hand when somebody asks, "anybody want to be on the ethics committee?"
The informal response, "not a formal opinion," was signed by Roy Simon, Hofstra Law School's Howard Lichtenstein Distinguished Professor of Legal Ethic and chair of the committee. He went emeritus in September 2011. According to his CV:
Member (1995-present) and Immediate Past Chair (2008-2011) of the New York State Bar Association Committee on Professional Responsibility. This Committee responds to ethics inquiries from attorneys regarding the New York Rules of Professional Conduct, and the Committee comments on proposals affecting regulation of lawyers.
Or fails to respond to ethics inquiries when they're too busy cowering in the corner. Maybe he forget that part.
The unanswered question is whether between the time of the draft opinion and the ultimate display of worthlessness embodied by the "informal response," someone, oh say from the DoD or some other jumble of initials using government computers, "reached" the committee to convince them to keep their nose out of government business?
Or whether the committee, perhaps its chair, decided that it wasn't good for them to become embroiled in the thorny question of how a New York lawyer should ethically address a government demand for wholesale access to his client's confidences. After all, it's one thing for the lawyers whose butts are on the line in the defense of enemy combatants to bear the risk of ethics, but why would anyone who joined a bar association committee in New York want to take a risk pissing off the government?
Despite the manifest failure of the NYSBA ethics committee to show the slightest interest in ethics or fortitude, defense lawyers have persisted in their refusal to consent to the government's monitoring of their work, and the Chief Defense Counsel concluded that the DoD demands violated fundamental ethical proscriptions and directed all defense lawyers to refuse.
While the lawyers in the service of the military have demonstrated the guts to stand firm on their ethical responsibilities to their clients, the contrast between their position and the utter failure of the NYSBA ethics committee couldn't be more clear, and more of a disgrace. How nice that a bunch of self-important bar association guys get to pad their resumes with their committee assignments, while punting at the first sight of risk.
The NYSBA's "informal opinion" on ethics is to run away from their responsibility if there is any chance it might be controversial. Not the underlying ethical issue, about which there was nothing controversial at all, and it was about as clear and easy as any ethical question could be. Rather, upsetting the powerful government is a risk that bar association players aren't willing to take. Sorry, Gitmo defense lawyers, but your ethics just aren't worth the risk.
Well, standing up to someone who can easily declare your actions "in material support of terrorism" take a certain level of instestinal fortitude a lot of people lack. Especially now that NDAA is the law of the land.
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Yup. It's hard to stand up. Very hard. The government is very scary, and contrasted with something as trivial as ethics, why would anyone take the risk.
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Yes, it is very hard for individuals to stand up. If only there were an organization of some kind, a collective of some sort, that can stand up together - oh wait.. Would really anything happen to the bar if they had published a proper (and obvious) answer. At worst, some politician would have had his 14:59 by making some asinine statement about lawyers. Some of the district court judges in DC didn't flinch while handling some of the habeas (before the circuit went nuts). If they could write orders literally freeing people from Guantanamo - this bar should at least be able to answer an ethics question.
The American Psychiatric Association didn't cover itself with glory either when confronted with the ethics of psychiatrists who took active part in "interrogations". They made all the right noises but they could and should have cast them out.
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Whenever I say something that stereotypes someone (which may or may not be accurate), everybody complains. Screw 'em. I don't know Roy Simon, but I know plenty of lawprofs and plenty of bar association types. Far too many of them aren't there to be bold and do right, but for self-aggrandizement because they want to be important and admired. If something doesn't make them important in the eyes of their brethren, then there's no reason to do it.
An opinion might make people angry with them. Then they wouldn't be admired leaders. Why risk it?
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Isn't it interesting that the one person who chose to stand-up to the GITMO orders is the one who stands to lose the most by angering those above him (the Chief Defense Counsel).
Presuming that there are at least a few NY licensed lawyers on his team (a fair assumption, I think), I'm glad that the Colonel has their back since the state bar assn. doesn't.
I hope they don't pay dues.
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The Colonel showed what he's made of. If only the NYSBA ethics committee was half as concerned about ethics.
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"...enemy combatant clients, who may be the only group in America without a Facebook fan page."
I have since corrected this oversight:
https://www.facebook.com/pages/Guantanamo-Bay-Enemy-Combatants/286905061372744
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So I see. Please speak your name and home address into the computer screen slowly...
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As the defense attorney for one of the detainees, I appreciate your thoughtfulness, but could you please modify the name of the Facebook site? A great many of them are neither enemies NOR combatants, but merely "detainees. Naming the site "enemy combatants" will generate abusive presumptions, I fear. Perhaps revise with simply "detainees"? Thanks much. LB
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I don't think it was meant to be taken quite so seriously. As for abusive presumptions, I think the horse left the barn on that about a decade ago.
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On a more serious note, I don't understand the legal basis for the treatment of these detainees. (I'm not a lawyer.) I would have expected that they would be treated as prisoners of war, and held until the cessation of hostilities (however long that might be), or that they would be treated as criminals, and tried in federal court like those Somali pirates. If they're POWs and the Taliban or Al Qaeda or whoever never capitulates, that sucks. (The only historical precedent I can think of is the Hundred Years' War.) But if they're criminals, whether they're apprehended by the military or by one of the federal civilian police forces should be irrelevant - they should get their day in federal court just like any other person accused of a federal crime. I don't get why *these* guys have to be treated differently.
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Unfortunately, the way comments work around here is that they're limited to the post rather than generic issues so that discussion remains on topic. Sorry, but them's my rules.
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Wouldn't the issue of the government having access to all electronic communications apply to every defense case and not just the Gitmo cases? I can't speak for all branches of the service but in the Air Force defense counsel uses the same network that everyone else uses and we all sign off on the same stupid consent when we log in. I have never once heard a peep from anyone questioning this or raising the issue. So why now, all of a sudden, are these attorneys so worried about their clients confidences? Did it not matter in the past? It is an issue I have thought about, especially in a case I had where my client had issues with the IT folks at the base and I knew they had improperly accessed his e-mails in the past. Luckily for my client and I we had personal computers to use. These folks don't.
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Or the question can be asked in the alternative, why hasn't anyone worried about their client confidences before?
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Probably a moot point now that DHS (which sounds better in the original Klingon) reads Twitter and deports people based on what they find.
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